Recent Equality Tribunal Decisions

Each month we look at and review the decisions from the Equality Tribunal. This provides a valuable insight into the types of discrimination cases before the Tribunal and the decisions that are issued.

The Equality Tribunal published 13 decisions for April 2014.Employment Equality Decisions Upheld or Part-Upheld:DEC-E2014-017:Mirela Mentel –v- Top Heights Ltd. t/a Foys Bar & Lounge. Grounds/Issues: Employment Equality Acts, 1998-2011 - sections 6,8, 74 and 77 - race – gender - employment status - conditions of employment – harassment - prima facie case - victimisation - equal pay - burden of proof. Award:€2,500 for the distress suffered by her as a result of the discriminationDEC-E2014-022:An Employee -v- An Employer. Grounds/Issues: Employment Equality Acts - Sections 6, 8, & 7416 – Gender – Family Status - Disability – Conditions of Employment - Harassment – Victimisation - Provision of reasonable accommodation – time limits. Award: €7,000 in compensation for the discriminatory treatment sufferedDEC-E2014-030:Ms H -v- A Multi-National Retailer. Grounds/Issues: Employment Equality Acts - Disability - Failure to provide reasonable accommodation - Osteoarthritis, Colectomy - Health and Safety issues - Cost of provision of toilet for people with physical disabilities. Award: €30,000Employment Equality Decisions Not Upheld: DEC-E2014-019:Dolores O’ Sullivan -v- St. Michael’s Hospital/HSE.Grounds/Issues:Employment Equality Acts - discriminatory treatment - age - voluntary redundancy scheme - prima facie case - objective justification – EU Directive 2000/78/EC DEC-E2014-021:Frances Shanahan -v- RTE.Grounds/Issues:Employment Equality Acts - Sections 6 & 8 – Gender & Age – Promotion – Victimisation – Equal Pay DEC-E2014-023:Marcel Boros -v- CPL Resources plc.Grounds/Issues:Employment Equality Acts - Sections 6 and 8 – Race - Access to employment - race DEC-E2014-024: Paul Farrell -v- Department of Transport.Grounds/Issues:Employment Equality Acts - Sections 6, 8 & 74 – Age - Equal Pay - Victimisation. DEC-E2014-025:A Worker -v- A Second-Level School.Grounds/Issues:Jurisdiction – S. 101(4) – complaint under Unfair Dismissals Acts decided by Rights Commissioner – time limits – S. 77(5) of the Acts – disability – discriminatory treatment – lack of reasonable accommodation – harassment – victimisation. DEC-E2014-026: Ms Ann Aziz -v- Mr David Jones and Mr John Smyth.Grounds/Issues:Preliminary decision pursuant to S. 79(3A) of the Employment Equality Acts – correct Respondent – Respondent company clearly and unambiguously stated on contract of employment – directors of Respondent company not personally liable and not the correct Respondents, as they are not the employers within the meaning of the Acts. DEC-E2014-027:Szymczak -v- Bergin t/a Grass Cutting Services.Grounds/Issues:Employment Equality Acts 1998- 2011 – sections 6, 8 and 79 –discriminatory treatment – non-attendance at Hearing – prima facie caseDEC-E2014-028:Ms. Malgorzata Szymanska -v- Beaumex.Grounds/Issues:gender, race, family status and disability - section 6 - section 8 - conditions of employment - harassment - discriminatory dismissal.DEC-E2014-029:Ronald Guiao -v- Fold Housing Association.Grounds/Issues:Employment Equality Acts – Failure to Attend - UnreasonableAdare Human Resource Management CommentaryCase Law from the Equality Tribunal always provides a useful reminder to Employers of the appropriate procedures that they should have in place in order to defend themselves against claims of discriminatory treatment under the Employment Equality Acts. In April, there were three successful claims leading to awards of €2,500, €7,000 and €30,000 respectively. The remaining nine claims were not upheld. The cases reported cover a number of complaints of discrimination under one or more of the nine ground and related aspects of employment including Equal Pay, Access to Employment, Promotion, Terms and Conditions of Employment and Dismissal. We have highlighted two specific decisions in April of the Equality Tribunal which are of value in reminding Employers of best practice and their obligations under the Employment Equality Acts. Disablity – Failure to provide reasonable accommodationEmployment Equality Decision Upheld or Partly Upheld:DEC-E2014-030:Ms H -v- A Multi-National Retailer. Grounds/Issues:Employment Equality Acts - Disability - Failure to provide reasonable accommodation - Osteoarthritis, Colectomy - Health and Safety issues - Cost of provision of toilet for people with physical disabilities. Award:€30,000 The case concerned a claim by Ms H against a Multi-National Retailer. The Complainant submitted that she was discriminated against on the grounds of disability, and that the Respondent failed to provide appropriate measures that would allow the Complainant to continue to be employed by them. The Tribunal in awarding the Complainant €30,000 (the approximate equivalent of a year’s salary) found that the Respondent had failed to provide appropriate measures that would allow the Complainant to return to work. The Respondent was further ordered to conduct a review of its employment policies and procedures to ensure that they are in compliance with the Employment Equality Acts, with particular reference to how employees with disabilities are treated. The Complainant was employed by the Respondent since 1975, working almost solely on the Customer Service Desk for 30 years. In 2001 she had a colectomy (removal of her colon) which meant that subsequently she had intermittent episodes of pouchitis/diarrhoea. In 2005 she had two knee replacements due to osteoarthritis and therefore found the toilet facilities in the store very difficult to use as they were upstairs (no lift) and were too low. For this reason she had to walk across the shopping centre to another store.At this time the Respondent was revamping the store where the Complainant worked and she asked whether this opportunity could be used to provide a toilet for people with physical disabilities as the store had none. She submitted that the Respondent acceded to her request as the store was about to trade 24/7 hours and they would need sanitary facilities for use by their disabled customers also. However, the toilet facilities were never installed. The Complainant submitted that she was given many and various excuses over the years as to why the toilet facilities were not installed.In Spring 2009, Ms H was told by the Personnel Manager of the store that a disabled toilet would soon be installed. Shortly afterwards Ms H went off holidays where she fell and broke her right femur which necessitated surgery in France. Ms H was a wheelchair-user for six months. She had further operations in January 2010 and July 2010. As soon as Ms H was back on her feet, she submitted that she was anxious to return to return to work. She was medically certified as fit to return to work in July 2011. Her doctor recommended three conditions that would allow her to return to work:

Return to work on a phased basis

Her doctor stated that ‘it is imperative that she is able to sit for periods of time during her working day’.

Access to a disabled toilet.

Ms H detailed these three conditions when exchanging emails with the Respondent in relation to returning to work. In response the Respondent stated that, in relation to using a chair, it would no longer be feasible to use a chair for her role on the Customer Service Desk, considering the nature of the business behind the counter, but could facilitate Mc H with a job at the checkouts.With regards access to a disabled toilet, due to the suspension of the revamp of the store, the possible provision of a customer disabled toilet had also been suspended. In the interim they advised that they would allow Ms H extra time to use the shopping centre disabled toilet. The Respondent stated that they were happy for Ms H to return to work on a phased basis over a period of weeks.As the Complainant was not satisfied with this response, she raised a formal grievance. Ms H submitted that working on ordinary checkouts would be perceived as a demotion. Ms H states that she was restricted from lifting heavy weights so therefore this position would not be suitable. She also submitted that the onus was on her employer to provide reasonable accommodation. She maintained using the toilets in the extremely busy shopping centre was not feasible for her as she also has an internal pouch (following the colectomy) and occasionally suffered from pouchitis which caused diarrhoea. Therefore she could not queue for as long as a person without this particular disability. Her grievance was heard on 31st August 2011 by Mr B (Store Manager, Coonagh). Her grievance was not upheld. The Equality Officer in evaluating the evidence, first made reference to whether the Complainant had established a prima facie case pursuant to Section 85A of the Employment Equality Acts. For the purpose of this case, the Equality Officer found that Ms H had two disabilities within the meaning of the definition of “Disability”, which the Complainant had made the Respondent aware of. Therefore, the issue for the Equality Officer was to decide whether the respondent failed to provide reasonable accommodation in order to enable the Complainant to work with the Respondent.The Respondent was happy to provide the first accommodation i.e. returning to work on a phased part-time basis. The Respondent had a difficulty with providing a seat behind the Customer Service Desk. This was despite an admission of the manager of the store, that the height of the desk had not changed and occasionally a stool had been made available previously for pregnant women. The Tribunal accepted the customer service role had changed since the Complainant’s accident but the Complainant had not objected in direct evidence at the hearing to taking on new responsibilities.The Equality Officer also foundthe suggested accommodation of working on a checkout not to be reasonable as this would have required Ms H to lift, for example, large boxes of detergent or sacks of potatoes when she was medically restricted from lifting significant weights. Therefore, the Equality Officer found that the Respondent has not explored the request of allowing Ms H to sit for some of her working day thoroughly enough.For many years the Complainant has requested access to a toilet for people with physical disabilities. Subsequent to the hearing (upon the Equality Officer’s request) the Respondent provided a quantified costing of installing a toilet for wheelchair users which would also suit the ambulant disabled like Ms H. The cost was estimated at €22,000. As the Respondent in this case was one of the world’s largest retailers and its revenue in Ireland for the last reporting period was £2,315million (sterling), the Tribunal found that it would have the financial resources to install sanitary facilities for people (which may be used for customers as well as staff) with varying physical disabilities in the store where Ms H worked. Furthermore, the Tribunal found that this demonstrated a lack of real engagement by the Respondent to provide for a reasonable accommodation.The Equality Officer found that the Respondent has failed to provide appropriate measures that would allow the Complainant to return to work and therefore in accordance with Section 82 of the Act, ordered the Respondent pay the Complainant €30,000 (the approximate equivalent of a year’s salary) in compensation for breaches of the Employment Equality Acts.The Respondent was also ordered to conduct a review of its employment policies and procedures to ensure that they are in compliance with these Acts with particular reference to how employees with disabilities are treated.The Employment Equality Acts set out a statutory framework to uphold equality in Irish workplaces, while E.U. Directives and legal judgements directly impact employment practices in Ireland. This case provides a valuable reminder to all Employers that the area of Equality is an area of great importance to Employers, and one which can present great exposure to the risk of claims by both Employees and applicants for employment. Aside from the compensation that may be awarded where a case arises, the negative publicity that is generated by an equality claim can be extremely damaging to an Employer’s reputation. This is despite the fact that, in many cases, the Organisation did not intentionally discriminate, or was simply unaware of its responsibilities. As a result, it is strongly recommended that all Employers ensure that they are aware of their responsibilities in relation to equality in the workplace. In order to protect the Organisation from claims of discrimination an Organisation must be seen to take reasonable steps to prevent discrimination occurring. Where discrimination does occur, or is alleged to occur, the Employer must take steps to ensure that there is no further reoccurrence of the discrimination. In all cases of disability discussions should be entered into with the Employee as to what measures are required and medical advice should be sought where appropriate. As this is an area where many Employers expose themselves to the risk of claims of disability discrimination, it is strongly advised that advice is sought before taking any decisions not to provide reasonable accommodation.Voluntary Redundancy Scheme – Objective JustificationEmployment Equality Decision Not Upheld:DEC-E2014-019: Dolores O’ Sullivan -v- St. Michael’s Hospital/HSE.Grounds/Issues: Employment Equality Acts - discriminatory treatment - age - voluntary redundancy scheme - prima facie case - objective justification – EU Directive 2000/78/EC This dispute concerned a claim by Ms. Dolores O’ Sullivan (hereafter "the Complainant") that she was subjected to discriminatory treatment by St Michael’s Hospital/HSE (hereafter "the Respondent) in relation to a voluntary redundancy scheme on grounds of her age, in that, she was treated less favourably on account of her age vis a vis younger employees who received a much more enhanced redundancy package.The Complainant commenced employment with the Respondent in the catering department in January 1982. In November 2010, the HSE put in place a targeted Voluntary Early Retirement Scheme (VER) and a targeted Voluntary Redundancy Scheme (VRS). The purpose of the two schemes was to achieve a permanent reduction in the numbers employed in the public health sector from 2011 and to facilitate public reform. The VRS provided for the payment of (i) 3 weeks gross pay per year plus (ii) the statutory redundancy entitlement of 2 weeks gross pay per year of service plus a bonus week. The VRS stated that the terms of the VRS would apply to all age groups up to age 60 and would provide for 2 weeks pay per year of service plus the statutory entitlement of 2 weeks pay per year of service (subject to a cap of €600 a week) subject to a maximum of 2 years pay. For people over 50 the terms would be an overall maximum severance payment of 2 years pay or 50% of their potential earnings to age 60, whichever was the lesser.On receipt of documentation from the Respondent regarding estimated calculations in relation to the VRS, the Complainant discovered that her payment was significantly smaller than that of her colleagues who were under the age of 50. The Complainant contended that the scheme allowed for employees under the age of 50 to have their years of service calculated into the payments but the Complainant had her payment reduced due to the fact that she was 58 years of age. The Complainant argued that not only was her 28 years of service not taken into account but the 5 years from age 60 to the compulsory age of 65 was also omitted from the calculations simply due to the fact that the Complainant was 58 years of age.The Respondent submitted that the Complainant’s ex gratia redundancy payment was reduced to reflect the fact that she had a significant number of years’ service (nearly 29 years). The cap would also apply to a younger employee (e.g. 48 years) who had the same amount of service as the Complainant. The Respondent contended that under the terms of the VRS, the Complainant’s redundancy payments were calculated on the basis of her full service, nearly 29 years.The Respondent further submitted that the Complainant was entitled to retain the full amount of her statutory redundancy payment (€35,442). However, her gross ex gratia payment (€8,172) was adjusted so that she would not exceed the overall limit provided for under the scheme. This adjustment in her ex gratia payment reflected the fact that she had only 2 years’ potential service before reaching her preserved pension age of 60 years and had accrued nearly 29 years’ service. Her actual ex gratia payment therefore amounted to €4,572. She was also entitled to an additional €3,600 for payment in lieu of notice. The net redundancy payment to which she would have been entitled if she availed of the VRS amounted to €43,614. The Respondent also submitted that the application of a cap on the ex gratia amount payable to applicants based on the employee’s length of service and proximity to preserved pension age was not discriminatory on age grounds and refers to the exclusion under section 34(3)(a) of the Employment Equality Acts.The Equality Officer in this case found that the Respondent had succeeded in demonstrating, that its actions, insofar as the treatment of the complainant was concerned in relation to the provisions of the VRS, could be objectively justified and the complainant therefore failed in her claim.In line with the exceptions as outlined in 34(3)(a) of the Employment Equality Acts, the Tribunal found that it shall not constitute discrimination on the age ground in circumstances where it is shown that there is clear actuarial or other evidence that significantly increased costs would result if the discrimination were not permitted in those circumstances.Furthermore, the Tribunal found therefore that the Respondent did not discriminate against the complainant on grounds of age in terms of section 6(2) of the Employment Equality Acts 1998 to 2008 and contrary to section 8 of those Acts in relation to the application of the VRS in the manner in which it calculated the Complainant’s entitlements as regards the Voluntary Redundancy Package.__________________________________________________________________________________The Employment Equality Acts 1998 to 2012, outlaw discrimination in work related areas such as pay, vocational training, access to employment, work experience and promotion. Cases involving harassment and victimisation at work are also covered by the Acts.Employees or Ex-Employees who feel they have been discriminated against may refer a complaint toThe Equality Tribunalthrough Workplace Relations Customer Services within 6 months of the occurrence of the act of discrimination. The Director of the Tribunal may extend this to a maximum of 12 months, if the complainant shows that there is reasonable cause to do so.The nine grounds on which discrimination is outlawed by the Employment Equality Acts are as follows: Gender, Civil status, Family status, Sexual orientation, Religious belief, Age, Disability, Race colour, nationality, ethnic or national origins, Membership of the Traveller community.